Central Administrative Tribunal - Delhi
Dr Shailesh Pandit vs M/O Information And Broadcasting on 4 May, 2018
Central Administrative Tribunal
Principal Bench
OA No.4113/2016
Reserved on : 26.04.2018
Pronounced on : 04.05.2018
Hon'ble Mr. Justice Dinesh Gupta, Chairman
Hon'ble Mr. K. N. Shrivastava, Member (A)
Dr. Shailesh Pandit
aged 61 years,
So Late Ramlakhan Mishra
Retired Deputy Director General (P)
Doordarshan
R/o C-409, Chittaranjan Park,
New Delhi-19. .... Applicant.
(By Advocate : Shri Yogesh Sharma)
Vs.
1. Union of India through
The Secretary
Ministry of Information & Broadcasting,
Govt. of India, "A" Wing, Shastri Bhawan,
New Delhi-1.
2. The Chief Executive Officer
Prasar Bharati, PTI Building
2nd Floor, Sansad Marg,
New Delhi-1.
3. The Director General
All India Radio,
Akashwani Bhawan, Sansad Marg,
New Delhi-1.
4. The Director General
Doordarshan, Doordarshan Bhawan,
Copernicus Marg,
New Delhi-1. ... Respondents.
(By Advocate : Shri R. K. Sharma)
2
:ORDER:
Justice Dinesh Gupta, Chairman :
The applicant has filed this OA seeking following reliefs:-
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 21.9.2016 (covering letter dated 25.10.2016) (A/1) and action of the DPC by which commendation of the applicant for his promotion to the post of JAG against the vacancy year 2010-2011 has been placed under sealed cover, declaring to the effect that the same is illegal, arbitrary and against the law and consequently, pass an order directing the respondents to open the sealed cover of the applicant and if the applicant found fit, the applicant may be granted all the consequential benefits of promotion from the date of vacancy of the year 2010-11 to the post of JAG with GP 7600 with all the consequential benefits including the arrears of difference of pay and allowances and revision of retirement benefits of the applicant with all the consequential benefits with interest.
(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to grant the Non-
Functional (in the Grade Pay of Rs.8700) selection Grade to the applicant from the due date i.e. w.e.f. 1.1.2006 with all the consequential benefits including the arrears of difference of pay and allowances and revision of retirement benefits of the applicant with all the consequential benefits with interest.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant."
2. Brief facts of the case are that the applicant was initially appointed to the post of Assistant Station Director in Doordarshan through UPSC vide order dated 25.09.1992. He joined the said post on 30.11.1992. He thereafter got promotions and lastly retired from the post of Deputy Director General (P), Doordarshan on superannuation 3 from service on 30.06.2015. It is stated that just before one day of applicant's retirement, i.e., 29.06.2015 he was arrested by the Anti Corruption Branch, CBI, Ranchi, and as a result of it, the department, i.e., Respondent No.2 vide order dated 30.06.2015 placed him under suspension w.e.f. 24.06.2015 from the date of registration of the case by CBI.
3. It is further submitted that the applicant became eligible to be considered for promotion to the post of Junior Administrative Grade (JAG) with Grade Pay of Rs.7600/- for the vacancy year 2010-2011, and subsequently the grant of NFSG with Grade Pay of Rs.8700 on completion of his 14 years of service in the year 2006 itself. No DPC was conducted for JAG posts from 2005-06 to 2015-16 and, therefore, not only the applicant, no other person was considered and promoted during ten years period without any justified reason. It is, for the first time, only after retirement of the applicant, on 18.04.2016, DPCs have been conducted for the vacancy year 2005-06 to 2016-2017 for 33 posts. The applicant was also considered for the vacancy year 2010-2011 against the 18 vacancies but his case has been put under sealed cover. The applicant submitted a detailed representation dated 30.08.2016 to the respondents requesting them to open the sealed cover. However, the respondents vide order dated 21.09.2016 rejected the representation of the applicant and copy of the same has been provided to him through RTI vide covering letter dated 25.10.2016, 4 wherein the respondents have admitted that the matter is still under investigation and no charge has been framed by the competent court of law. Aggrieved by the same, the applicant has filed the present OA praying for the aforesaid reliefs.
4. Shri Yogesh Sharma, learned counsel for the applicant submitted that the applicant became eligible for his promotion in the year 2010- 2011 and at that time, neither the applicant was placed under suspension nor any charge sheet or criminal case was pending against him, and therefore, placing his name under sealed cover is not correct. He has submitted that the vigilance clearance should be considered on the date when the applicant became due for promotion for the vacancy year 2010-2011, and not as on 18.04.2016, the date when DPC was held, by which time, the applicant had already retired from service. Learned counsel for the applicant has further submitted that the eligible persons have been considered for promotion from the due date of vacancy year but have been granted promotions from the date of assuming the charge. He has relied on a judgment of Patna Bench of this Tribunal in O.A. No.504/2013 dated 23.06.2016 wherein an identical issue has been adjudicated and held as under:-
"7. In view of the above, the respondents are directed to extend the consequential benefits to the applicant specifically with regard to the pensionary benefits, giving notional benefit of promotion to the post of JAG in grade pay of Rs.7600/- from the vacancy year 2010-2011 and revise the pensionary benefit and 5 also pay arrears, if any, with interest @8% from the due date to actual date of payment."
Learned counsel for the applicant has vehemently argued that it is a settled law that the incumbent should not be penalized for the delay in holding the DPCs and that the respondents are required to discharge their duties and responsibilities timely and act fairly. He has referred to the guidelines issued by Department of Personnel & Training vide OM dated 08.09.1998 read with OM of even number dated 13.10.1998 which clearly indicates the time schedule for convening of DPCs. The OM ordains that the DPC should be held at least 4 to 8 months in advance before the commencement of the vacancy year so that eligible officers are not deprived of their legitimate right of promotion due to delay in the constitution of DPC and convening its meeting/s. He has further referred to the OM dated 14.12.2000 whereby the DoPT has counseled to strictly ensure adherence to the Model Calendar which has been devised as a system improvement measure and non- adherence to prescribed time frame in convening the DPCs well in advance is considered as a matter of serious concern and responsibility for any lapse in this regard is to be fixed.
5. Learned counsel for the applicant submitted that an identical issue came before the CAT, Lucknow Bench in OA No.517/2002 which was decided vide order dated 30.07.2004 with the following directions:-
6
"15. From the above discussion, we find that since the case of the applicant which is squarely covered by the decision as laid in the case of B. K. Alok (supra) therefore, in terms of the order in that case, we allow the OA and direct the respondents to give promotion to the applicant w.e.f. 01.02.2002 on notional basis to the post of DDG (Geology) and fix the pay accordingly to give him consequential benefits in pension. In our view, any further relief asked for by the applicant in this OA cannot be allowed in the facts and circumstances of this case. Hence the same are declined."
6. The reply has been filed on behalf of respondent Nos.2 to 4 opposing the OA reliefs claimed in the OA. It is stated that the adoption of sealed cover procedure is not dependent on the year of vacancy, rather it is dependent on the date of consideration of promotion. It is further submitted that the applicant was considered for promotion by the DPC but its recommendations have been kept in a sealed cover as the applicant was not vigilance-cleared on the date of DPC. With regard to the non convening of DPCs from 2005-2006 to 2015-2016, it is stated that it was not due to any negligence on the part of the respondents that the DPC could not be convened. It is argued that the UPSC was not accepting DPC proposals on the ground that all these posts have been transferred to Prasar Bharati - a Corporation, and they are no longer Government posts. It is further submitted that in view of the pending investigation of a criminal offence and the deemed suspension of the applicant, the sealed cover procedure has rightly been adopted in the case of the applicant. He stated that the applicant is not entitled to non-functional selection grade also and hence, the OA is liable to be dismissed.
7
7. The arguments of learned counsel for the parties were heard on 26.04.2018.
8. Shri Yogesh Sharma, learned counsel for applicant submitted that on 13/18.04.2016 when the DPC was held, the applicant was not facing any disciplinary enquiry (DE) proceedings, nor had any charge- sheet been filed against him in the criminal case. Hence, it was not correct on the part of the DPC to keep the case of the applicant in the sealed cover. He argued that as per the information obtained by the applicant under Right to Information Act, 2005 (Annexure A-1), the respondents, in the internal Note (p.15), have noted as under:-
"4. As far as vigilance clearance of Sh. Pandit is concerned, it is stated that he was arrested by CBI Ranchi in case No.RC6/A/15- R on 24.06.2015 for a period exceeding 48 hours. In view of this, he was deemed to have been suspended from that date. This case is still under investigation by the ACB, CBI Ranchi. In view of this, Dr. Pandit can be informed that till the case filed against him by CBI is not finalized, the sealed cover recommendations of the DPC cannot be opened...."
9. Shri Sharma argued that from the ibid notings of the respondents, it is quite evident that the matter is still under investigation by the ACB, CBI Ranchi and charge-sheet has not been filed. The applicant, however, was considered for promotion by the DPC against a vacancy for the year 2010-2011. Shri Sharma placed reliance on the following judgments:
8
(i) Patna Bench of the Tribunal in O.A. No.504/2013 dated 06.05.2016 (A K Gupta v. The Union of India & others), in which, dealing with an identical case of the applicant therein, who was also an employee of Doordarshan (Prasar Bharati), following direction has been issued:-
"7. In view of the above, the respondents are directed to extend the consequential benefits to the applicant specifically with regard to the pensionary benefits, giving notional benefit of promotion to the post of JAG in grade pay of Rs.7600/- from the vacancy year 2010-2011 and revise the pensionary benefit and also pay arrears if any, with interest @ 18% from the due date to actual date of payment."
(ii) Judgment of Hon'ble Delhi High Court in Dr. Ramakant Singh v. Union of India & others (W.P. (C) No.5802/2015) decided on 11.08.2016, in which the following observations have been made:-
"14. Delay in holding DPCs has been a subject matter of various decisions of the Supreme Court of India. In fact, the Office Memorandum dated 08.09.1998 which has been extracted in para
12 aforegoing, it has been highlighted that DPC should be convened at regular annual intervals to draw panels which could be considered for making promotions against vacancies which occur during the course of particular year. The OM has also highlighted that the concerned appointing authorities must initiate action in advance to fill up anticipated vacancies. Another relevant fact which has been highlighted is that DPCs need not be delayed or postponed on the ground that the Recruitment Rules for a particular post are being reviewed/amended. The Supreme Court in the case of Union of India & Ors. (supra) not only laid stress that DPC should be convened every year, even suggested that dates should be fixed, i.e., 1st April or 1st May each year."
9
(iii) Principal Bench of this Tribunal in R P Singh v. Govt. of NCT of Delhi & others (O.A. No.1604/2009) decided on 23.12.2009, wherein, on the issue of delay in granting ACP benefits to the applicant therein, it has been observed as under:-
"4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed their counter reply. The facts as set out in the Application, as mentioned at the very outset, are not in dispute. It has, however, been pleaded that the recommendation of the screening committee was kept in sealed cover as the applicant was arrested on 9.9.2008 in case FIR No.18/08 dated 24.6.2008 u/s 13(1)(c)(d), 13(2) Prevention of Corruption Act read with Sections 420/468/471/120-B IPC. The applicant at the time of consideration of his case was under
deemed suspension. The respondents then rely upon instructions/guidelines for grant of benefit under ACPS introduced by the Government vide OM dated 9.8.1999 circulated on 27.8.1999, as also OM dated 18.4.2000 and clarification point No.48 of the OM dated 18.7.2001. Pertinent reference is to point No.48 of OM dated 18.7.2001, wherein sealed cover procedure is made applicable for grant of ACP benefits as well. There may not be any dispute that ACP is granted on the same parameters on which promotion is granted, and promotion can be withheld by putting the case of an employee in sealed cover. The position with regard to grant of ACP benefit may not be different. However, when the applicant was entitled for grant of first and second ACP in 1990 and 2002 respectively, in our considered view, registration of an FIR years and years after, would not authorize the respondents on the dint of OM as relied upon by them, to put the case of the applicant under sealed cover. Surely, if the respondents had woken up from their deep slumber, the applicant would have got his first ACP in the year 1990 and the second in 2002. Surely, if the applicant would have been granted the benefit that he was entitled to, registration of the case would not have resulted into withdrawing the same. That apart, the criminal court has not framed any charge against the applicant as yet. We need not refer to the case law on the point as that would unnecessarily burden the judgment. However, it is by now a settled proposition of law that promotion of an employee cannot be stalled by putting his case in sealed cover unless, if the employee is facing a departmental enquiry, charge has been framed against 10 him by the concerned authority, or if he is facing a criminal case, charge has been framed by the concerned criminal court. We find no justification whatsoever for the respondents to have kept the case of the applicant in sealed cover. That being so, the order dated 14.5.2009 keeping the case of the applicant in sealed cover is quashed and set aside. The respondents are directed to make available to the applicant both first and second financial upgradations under ACP Scheme from the dates as mentioned above. Arrears on that count shall be calculated and made over to the applicant within a period of three weeks from today."
10. Per contra, Shri R K Sharma, learned counsel for respondents argued that the applicant was arrested by the CBI on 24.06.2015 and he was placed under suspension on 30.06.2015. The DPC meeting took place on 13/18.04.2016 wherein the case of the applicant was also considered. As on the date of the DPC meeting, the applicant was not vigilance-cleared and hence, his case was required to be placed under the sealed cover. Shri Sharma relied on the judgment of Hon'ble Supreme Court in Union of India & others v. Dr. (Smt.) Sudha Salhan, AIR 1998 SC 1094, wherein, relying on the ratio of law laid down by it in the case of Union of India & others v. K.V. Jankiraman & others, (1991) 4 SCC 109, it has been held as under:-
"4. The question, however, stands concluded by a Three Judge decision of this Court in Union of India and Ors. Vs. K.V.Jankiraman & Ors. (1991) IILLJ 570 SC, in which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The 11 recommendation of the Departmental Promotion Committee can be placed in a "sealed cover' only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or own its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officers, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendation of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to."
11. We have considered the arguments of learned counsel for the parties and have also perused the pleadings.
12. From the documents placed on record, it would appear that the matter is still under investigation by the ACB, CBI Ranchi, but not clear as to whether the charges against the applicant have been framed or not. In the reply also, the respondents have not made any mention in this regard, nor have they stated that the matter is still under investigation.
13. The question as to whether a Government servant can be denied promotion or sealed cover procedure could be adopted in the matter of his promotion on the ground that a criminal case or departmental proceeding is pending against him, is no more res integra and is concluded by a series of judgments of the Apex Court as well as of this Tribunal, wherein it has been held that in the matter of promotion, sealed cover procedure is to be resorted to only when charge memo is issued in a departmental proceeding, or charge-sheet is filed in court. 12 In K. Ch. Venkata Reddy & others v Union of India & others [1987] 3 ATC 174], a Full Bench of this Tribunal considered the issue as to whether pendency of disciplinary/criminal proceedings would justify withholding of promotion etc. of an employee, and held that such consideration cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceeding against an official, and that the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court, and not before. The ratio of the Full Bench judgment is that so long as charge memo or charge-sheet is not issued, a Government servant cannot be denied his promotion, nor sealed cover procedure could be adopted by the DPC. The view of the Tribunal was also approved by Apex Court in K. V. Jankiraman (supra). The contention on behalf of Union of India that in a matter of serious allegations, investigation is bound to take some time in collecting the necessary evidence to prepare and issue the charge memo or charge sheet and, therefore, an employee facing such charges cannot be rewarded with by giving promotion, increment, etc., is repelled by the Apex Court. It is observed by the Apex Court in para 16 of the judgment that acceptance of this contention would result in injustice to the employees in many cases as the preliminary investigation may take inordinately long time, and particularly when the same is initiated at the instance of interested persons, they are kept pending 13 deliberately and at times it never results in the issuance of any charge memo or charge sheet.
14. Therefore, it is well settled legal position that so long a charge memo or charge sheet is not filed in a departmental proceeding/ criminal case, sealed cover procedure cannot be adopted nor an employee can be denied his promotion or grant of increment, etc., on the pretext of such departmental proceeding under contemplation or mere pendency of a criminal case where no charge sheet has been submitted after investigation by the police.
15. In the case in hand, the respondents, did not bring any evidence on record, nor even a statement is made on affidavit by the respondents that a charge-sheet or charge memo has been issued to the applicant, and, therefore, in the light of exposition of law made by the Apex Court, the applicant's promotion cannot be withheld nor sealed cover procedure could be adopted in his case. So far as the suspension of the applicant is concerned, although he was placed under suspension one day before his retirement, but since he was retired, he cannot be deemed to be under suspension on the date of meeting of DPC in the year 2016, and, therefore, the plea of the respondents that on the date of meeting of DPC, the applicant was under suspension is rejected.
14
16. In the circumstances, we dispose of this O.A. with the following directions to the respondents:-
(i) Open the sealed cover qua the applicant. If it is found that he has not been recommended for promotion due to pendency of any DE proceedings or criminal proceedings, then communicate the same to the applicant by a speaking order indicating therein the date of issuance of the memorandum of charges in case of the DE proceedings or the date of filing of charge-sheet in case of the criminal proceedings.
This shall be done within a period of two months from the date of receipt of a copy of this order.
(ii) In case on the opening of the sealed cover, it is found that no memorandum of charges / charge-sheet has been issued to the applicant and thus he is not under the cloud of any DE proceedings/ criminal proceedings, then grant him promotion against the grade and vacancy year, for which he has been found fit by the DPC. This shall also be done within the aforementioned period.
No order as to costs.
(K. N. Shrivastava) (Justice Dinesh Gupta)
Member (A) Chairman
/pj-sunil/